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Lawrence v. Texas

Lawrence and Garner v. Texas was a case decided by the United States Supreme Court in 2003; the 6-3 decision invalidated all sodomy laws in the United States, at least in so far as they apply to consenting adults acting in private. The reasoning was based on the liberty guarantee implicit in the due process clause of the Fourteenth Amendment. The court had treated the same subject in 1986, in the case Bowers v. Hardwick[?], when it upheld a Georgia statute that banned sodomy; the ruling in Lawrence (case number No. 02-0102) explicitly overturns Bowers.

Sodomy laws are statutes that criminalize oral and anal sexual conduct and have been applied to opposite-sex and same-sex conduct.

The case attracted much public attention, and a large number of amicus curiae briefs were filed in the case. The decision was celebrated by gay rights activists and lamented by social conservatives.

History and Appeals

Lawrence and Garner (petitioners[?]) were found having consensual sex (see consensual crime) in their home in Texas after police received a false report of a "weapons disturbance" from a neighbor (despite the false report, probable cause to enter the home is not at issue in the case). They were charged under Texas's "Homosexual Conduct" law, which prohibits anal and oral sex between members of the same sex, but not between members of the opposite sex.

They were convicted at a justice of the peace, but appealed to have the case tried at criminal court under Fourteenth Amendment Equal Protection grounds, claiming that the law was not constitutional since it prohibits sodomy between same-sex couples but not between heterosexual couples, and on a right to privacy grounds (also known as the "substantive due process" argument; the right to privacy for heterosexual couples has been recognized to include sex, including sex using contraception, i.e., non-procreative sex, but not sodomy). They pleaded no contest in the criminal court, reserving their right to file an appeal, and were fined $200 each, plus $141.25 in court costs.

They then appealed the case to the Texas Court of Appeals on both equal protection and right to privacy grounds. The Texas Court of Appeals upheld the decision, denying both the privacy (substantive due process) and the equal protection arguments. The Texas Court of Criminal Appeals denied review.

Supreme Court History

The Supreme Court granted writ of certiorari (thus agreeing to hear the case) on July 16, 2002. Oral argument was heard in the case on March 26, 2003; the decision was rendered on June 26, 2003.

The questions before the court were the following:

  1. Whether Petitioners' criminal convictions under the Texas "Homosexual Conduct" law - which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples - violate the Fourteenth Amendment guarantee of equal protection of the laws?
  2. Whether Petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?
  3. Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled?

On June 26, 2003 the Supreme Court voted 6-3 to strike down the Texas law, saying it violated due process guarantees. The majority opinion appears to cover similar laws in 12 other states and reverses a 1986 high court ruling upholding sodomy laws.

Justice Anthony Kennedy wrote the majority opinion, in which Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined. He stated that homosexuals have "the full right to engage in private conduct without government intervention." He cited Dudgeon v. United Kingdom[?], a 1981 case heard by the European Court of Human Rights, as demonstrating that the court's assumption in Bowers (that Western civilization uniformly condemned homosexuality) was erroneous, and added that "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." The majority decision relied on the substantive component of the Fourteenth Amendment's Due Process Clause, (the right of privacy) in overturning the law: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

Justice Sandra Day O'Connor filed a separate opinion, agreeing with the outcome of the case but not with all of Kennedy's rationale. O'Connor did not join the court in overturning Bowers (she had voted for the majority opinion in that case), but agreed with the court in overturning the Texas law, not on the basis of privacy but on the basis of equal protection (the Fourteenth Amendment's Equal Protection Clause), specifically ruling that a law directed against a group rather than an act could not stand. She indicates her belief that a sodomy law that was neutral both in effect and application might well be constitutional, and that as "long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society." She did leave the door open for laws which distinguished between homosexuals and heterosexuals on the basis of legitimate state interest, but found that this was not such a law.

Justice Antonin Scalia wrote a sharply worded dissent, in which Chief Justice William H. Rehnquist and justice Clarence Thomas joined. Scalia objected to the Court's decision to revisit Bowers, pointing out that there were many subsequent decisions based on Bowers that, with its overturning, may now be open to doubt: Williams v. Pryor, which upheld Alabama's prohibition on the sale of sex toys; Milner v. Apfel , which asserted that "legislatures are permitted to legislate with regard to morality...rather than confined to preventing demonstrable harms"; Holmes v. California Army National Guard, which upheld the federal statute and regulations banning from military service those who engage in homosexual conduct; Owens v. State, which held that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage", and, echoing Senator Rick Santorum's May comments that if the justices overturned the Texas law, "then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery, you have the right to anything," Scalia claimed that "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices."

Scalia asserted that with this decision, the Court "has largely signed on to the so-called homosexual agenda," adding that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means."

Justice Thomas in a separate short opinion wrote that the law which the Court struck down was "uncommonly silly" but that he voted to uphold it as he could find no general right of privacy in the Constitution.

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